As an inventor, it is important to disclose your ideas in writing. Ideally, your initial drafts should explain some of the key insights behind your inventions. These insights can often stem from seeing a way to overcome some of the deficiencies of prior art. You can explain some of the technologies behind your insights and give specific examples. But perhaps you are insecure about your writing ability, or you don’t know the patent format style? Are you thinking about AI-assisted patent drafting? There are some pros and cons to this.
AI-assisted search engines, spelling and grammar checkers, and even patent claim checkers are now common. So why not go all the way and ask an AI system to write the entire draft?
Generative AI systems have now advanced to the point where they can construct elaborate patent disclosures. These can closely mimic the look and feel of full patent applications. But fight the temptation to submit a patent disclosure written entirely by generative AI. There are various legal and practical reasons why complete AI drafts are not a good idea. Here we will explore the pros and cons of AI in patent drafting.
AI as an assistant vs AI as the main writer
It is generally fine to use various AI assistants to help with your patent application. To the legal system, this is business as usual. Here, AI assistants may be merely replacing old-style secretaries, research assistants, paralegals, and the like. So long as you can show that you (or your human co-inventors) had the main patentable idea, you are OK. The problem arises when the line between your patentable idea and the AI-generated materials becomes blurry.
Legal problems – consequences of the Thaler v. Vidal decision
In the August 2022 Thaler v. Vidal decision, the Federal Circuit held that AI software systems cannot be an inventor on a US patent. This is because the law, as written, defines inventors as being limited to natural persons – human beings.
OK, but why not just have the AI system write the patent disclosure completely and not credit them?
When you submit a patent application, you declare that you and any human co-inventors are the actual inventors. You can’t list the AI. So if an uncredited AI is the actual inventor, this is not so great. You may have just falsely signed a federal document — Perjury.
This can happen. Say a patent issues, and a competitor sues. At some point in the future, you may be required to testify under oath about your contribution. Will you have to testify: “I asked Claude (AI) to write the disclosure?” If so, things will go badly. At a minimum, you must be able to explain your own independent thoughts and insights.
What about using AI to elaborate on your own patentable concepts?
This falls into an interesting gray area. Here, the Federal Circuit’s Pannu factor test can be relevant. This lists three main criteria to be an inventor. Someone is not an inventor if they merely “explain well-known concepts and/or the current state of the art.” So if that someone is an AI, no problem. The AI is just a glorified instructor.
Unfortunately, the other two Pannu factors are about “significance.” This is very subjective. Your results may vary depending on the invention and the court! So, the more you can document that you are the real inventor (and not the AI), the better.
Practical problems – the AI may actually hide your invention!
Many inventions occur as a flash of insight. You can often write this down on a single page of text. This single page of text may eventually become your first claim. However, if you use an AI to write everything, it may not preserve your prompts. The AI may even hide your actual insight behind many paragraphs of “AI slop.” Alternatively, it might break your insight up into multiple chunks. As a result, the original insight may be lost.
Working with a patent attorney? Sending an AI-written disclosure is not enough. Let the patent attorney know how much of any disclosure you send is your actual insight. Also, let them know how much is AI-written. The attorney will usually take great pains to accurately preserve your insight. At the same time, if the attorney knows that many pages are AI-generated, they can revise or redact as needed.
Other problems – AI hallucinations
You are probably familiar with the concept of AI hallucinations. AI hallucinations occur when an AI produces an incorrect reference or just makes stuff up. AI systems can also generate sections on materials and methods. So, at a minimum, you need to check any AI-supplied references. Be sure you understand any AI-generated materials and methods sections. Was the AI making stuff up? Double-check for accuracy when you are unsure.
Patents and AI slop:
Ideally, every paragraph in a patent application should have a purpose. The patent should either explain the prior art or elaborate on the invention itself. If you have used AI to help flesh out your disclosure, suspect any sections that don’t contribute to these areas. In general, assume that all sections are generated by an unreliable source. Read them carefully, and feel free to edit for conciseness and accuracy.
Conclusion: AI is just another tool; use it wisely
No one expects a human inventor to come up with concepts in a vacuum. Everyone relies on concepts derived from education, reference materials, prior patents, and (to a limited extent) insights from others. Used properly, AI systems, in particular generative AI systems, can assist in this process. However, modern generative AI systems are powerful enough to attempt to handle the entire process for you. Fight this temptation. At a minimum, keep careful records of your own independent ideas and transmit them to your patent attorney.